Pardo v. University of California, D054229 (Cal. App. 2/23/2010)

• Decision Date: 23 February 2010
• Docket Number: D054229.
• Citation: Pardo v. University of California, D054229 (Cal. App. 2/23/2010), D054229. (Cal. App. Feb 23, 2010)
• Parties: FRANCISCO PARDO, Plaintiff and Appellant, v. UNIVERSITY OF CALIFORNIA, SAN DIEGO MEDICAL CENTER, Defendant and Respondent.
• Court: California Court of Appeals

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FRANCISCO PARDO, Plaintiff and Appellant, v. UNIVERSITY OF CALIFORNIA, SAN DIEGO MEDICAL CENTER, Defendant and Respondent.

D054229.

Court of Appeals of California, Fourth Appellate District, Division One.

February 23, 2010.

Appeal from a judgment of the Superior Court of San Diego County, No. 37-2008-00083217-CU-WM-CTL, Ronald L. Styn, Judge. Affirmed.

Not to be Published in Official Reports

BENKE, Acting P. J.

Francisco Pardo, M.D., appeals from a judgment entered in favor of University of California, San Diego, Medical Center (UCSDMC), after the trial court denied his petition for writ of administrative mandate brought under Code of Civil Procedure section 1094.5. In his petition, Pardo moved (1) to set aside the decision of the appeal board of UCSDMC (appeal board), which unanimously affirmed the decision of the judicial review committee (JRC) denying his application for reappointment to UCSDMC's medical staff and (2) to compel UCSDMC to accept his application for reappointment "with all the rights and privileges he previously enjoyed."

Pardo's petition claimed that the various administrative bodies of UCSDMC, including the appeal board, violated the bylaws of UCSDMC, acted unreasonably and capriciously and denied him a fair hearing. Among other things, he argued the appeal board did not exercise its independent judgment but instead "rubber stamp[ed]" the decision of the JRC, which decision, he argued, was also not supported by substantial evidence.

The trial court denied the petition. In its order, the trial court reviewed each claim of error alleged by Pardo, determined the procedures taken by UCSDMC and its various administrative bodies substantially complied with the bylaws of UCSDMC and Pardo received a fair hearing. The trial court also found substantial evidence in the administrative record supported the decision of the appeal board and the JRC denying Pardo's application for reappointment to the medical staff.

On appeal, Pardo asks this court to reverse the decision of the trial court and "find both [the] JRC and the [appeal] [b]oard erroneously sustained the denial of [his] reapplication for privileges." Alternatively, Pardo asks this court to reverse the decision of the trial court "with respect to whether the [appeal] [b]oard complied with its obligations under the [b]ylaws," and remand the matter to the appeal board for further consideration of his application.

For reasons we explain, we conclude the governing administrative bodies of UCSDMC did not violate the bylaws of UCSDMC, Pardo received a fair hearing and substantial evidence supports the decision of the appeal board affirming the JRC's unanimous decision denying Pardo's reappointment application. We thus affirm the judgment for UCSDMC.

FACTUAL AND PROCEDURAL BACKGROUND¹

A. The Administrative Record

Pardo filed a motion in this court to add to the appellate record the exhibits lodged by the parties and considered by the trial court in his petition for writ of mandate. The exhibits include: the transcripts of the JRC hearing (exhibit 1); the medical staff exhibits (exhibit 2); Pardo's own exhibits (exhibit 3); procedural rulings of the hearing officer (exhibit 4); questions submitted to the parties by the appeal board in advance of the hearing (exhibit 5); the transcript of argument before the appeal board (exhibit 6); the appeal board's decision (exhibit 7); and the JRC's decision (exhibit 8).

UCSDMC filed a limited opposition to Pardo's motion. UCSDMC noted that Pardo did not include exhibit 37 in the medical staff exhibits, and asked this court to supplement the record to include that exhibit. UCSDMC also objected to Pardo's submission of the binder labeled "Volume 2" lodged as part of the medical staff exhibits in connection with the hearing before the JRC. UCSDMC claimed a redacted version of Volume 2 was actually submitted to the JRC, and asked this court to replace the unredacted version of Volume 2 with the redacted version.

Pardo has not opposed UCSDMC's limited opposition. As such, we grant Pardo's motion to add to the record the exhibits used by the parties in the administrative proceedings. We further grant UCSDMC's limited opposition and accompanying motion to include in the record exhibit 37 and the redacted version of Volume 2 in lieu of the volume submitted by Pardo.

B. The Parties

Pardo is a radiation oncologist. He was appointed to the medical staff of the UCSDMC in 1999, and reappointed in 2000 and 2002.

The Regents is a statewide administrative agency, administered by its Board of Regents, which derives its powers from the California Constitution. (Cal. Const., art. IX, § 9(a).) It operates the University of California campuses, including the University of California, San Diego (UCSD) and the UCSDMC, which is the primary teaching hospital of the UCSD School of Medicine.

The medical staff executive committee (MSEC) governs the medical staff of, and establishes and monitors clinical performance, patient safety and quality of care efforts at, the UCSDMC. The MSEC is guided by the medical staff bylaws (bylaws) and various other rules and regulations.

C. The Ad Hoc Committee's Investigation and Decision to Deny Reappointment

In early August 2003, Dr. William G. Bradley, Jr., M.D., then-chairman of the department of radiology, notified Pardo that Pardo's performance was "`beneath department expectations.' "Bradley informed Pardo that unless he made "`significant and sustained improvement during the next three months,'" the department would "`initiate the process of corrective action'" against him. Pardo's inadequate performance was noted in three specific areas: "`standards of performance' (e.g., `competence and practice')," "`administrative responsibilities' and `communication and professional style.'"

In the months following, problems with Pardo's performance resurfaced. In early February 2004, then-division chief of radiation oncology Dr. Steven Seagren, M.D., prepared a memorandum to Bradley recommending the department proceed with a disciplinary action against Pardo and his dismissal from the department. In Seagren's opinion, further counseling and monitoring of Pardo would not correct the deficiencies in Pardo's performance.

In October 2004, Bradley prepared a memorandum to the credentials committee of UCSDMC recommending that it deny Pardo's application for reappointment to the medical staff and initiate a formal corrective action investigation as required by the bylaws. Bradley presented more than three dozen instances "of clinical care considered below the standard of care in the community and/or unprofessional conduct" that occurred since Pardo's last reappointment in 2002.

In response, the MSEC met in closed session and decided to refer the reappointment recommendation back to the credentials committee for investigation of Pardo as provided under the bylaws. An ad hoc committee was formed to conduct the investigation. That committee met on numerous occasions, interviewing referring physicians, physician colleagues and supervisors in radiation oncology and radiation oncology staff. The ad hoc committee also met with Pardo in the beginning of its investigation and reviewed voluminous materials he submitted in connection with its investigation, including Pardo's 205-page response to the allegations against him. The ad hoc committee also sought and considered the input and report of an independent expert reviewer, Dr. Oscar Streeter, M.D., associate professor of clinical radiation oncology at USC Keck School of Medicine, and Pardo's 89-page response to that expert's report.

In late February 2006, after a thorough investigation that lasted about 16 months, the ad hoc committee issued a seven-page report setting forth its findings, conclusions and recommendations regarding Pardo's performance. The report stated in part:

"The ad hoc committee recommends that Dr. Pardo's application for reappointment as a member of the medical staff of [UCSDMC] be denied. The vast majority of reported allegations have been corroborated by multiple witnesses, and these allegations represent only a sample of inappropriate medical activities and behaviors. Dr. Pardo does not have the confidence of other physicians in the medical center, nor does he have the confidence of the Radiation Oncology Staff. Discussion with referring physicians, fellow Radiation Oncologists, and our expert witness reveals a pattern of careless, sloppy medical care. This has resulted in many `near misses[,]' as well as a few `direct hits' (harm to patients). In addition, UCSD practitioners believe his knowledge and judgment to be poor, and his practice to be out of the mainstream of modern Radiation Oncology.

"Behaviorally, [Pardo] exhibits a pattern of tardiness, poor and late record keeping, and incorrect and sloppy documentation. This behavior increases the likelihood of medical errors, and has a debilitating effect on clinic efficiency. Further, Dr. Pardo is often angry, defensive, and deceitful when questioned or criticized. This behavior is damaging to the clinic morale, and is antithetical to the collegial nature of our profession. Dr. Pardo consistently falls far below accepted standards with regard to medical care and professional behavior. His medical care and behavior are unbecoming of a UCSD Medical Staff member."

The ad hoc committee also investigated Pardo's charge that Seagren was retaliating against him because Pardo complained about the age of some of the equipment used in the department and the number of breakdowns it experienced. As allowed by the bylaws, the ad hoc committee retained an expert, Dr. William Wara, M.D., professor and chair of the department of radiation oncology at UCSF Medical Center, to review Pardo's patient safety concerns. Wara's report stated the equipment used at UCSDMC was old, but not unsafe, as Pardo had alleged, and noted there were no significant delays in patient treatment because of...